Court File and Parties
CITATION: Dolma v. LPM Management, 2025 ONSC 1478
DIVISIONAL COURT FILE NO.: 556/24
DATE: 20250318
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: TASHI DOLMA, Appellant/Tenant
AND:
LPM MANAGEMENT, Respondent/Landlord
BEFORE: Matheson J.
COUNSEL: Julio Diaz, for the Appellant/Tenant
Leroy A. Bleta, for the Respondent/Landlord
Nicola Mulima, for the Landlord and Tenant Board
HEARD at Toronto: March 10, 2025, by video-conference
ENDORSEMENT
[1] The appellant/tenant appeals from an order of the Landlord and Tenant Board (the Board) dated March 28, 2024 (the Eviction Decision), and related review orders dated July 19, 2024 (the First Review Decision) and September 6, 2024 (the Second Review Decision). The appellant submits that the Board erred in law in granting the eviction. The eviction was enforced last year, giving rise to an issue about remedy.
[2] The Board granted the landlord’s application for termination of the tenancy for non-payment of rent. After the landlord’s eviction application was served, the appellant paid over $4,500 of the arrears, but by the time of the hearing there was still over $3,500 in arrears owing. The tenant did not attend the hearing.
[3] As set out in the Eviction Decision, the Board gave the tenant another opportunity to pay the arrears and void the order, failing which they would be required to move out by April 8, 2024. The tenant did not pay the arrears then or at a later date. The eviction was lawfully enforced on May 10, 2024.
[4] The tenant requested a review on May 31, 2024. Among other grounds, they submitted that they were not reasonably able to participate in the prior hearing because of their disabilities, indicating that they were receiving ODSP benefits and had a poor memory. Commencing with the review proceedings, and going forward through this appeal, the tenant was represented by counsel.
[5] The review hearing began on June 18, 2024. The tenant attended with their counsel. At the hearing, the tenant testified that they had a poor memory and was receiving ODSP. However, they did not testify that they forgot to attend the hearing. The tenant testified that they did not attend the prior hearing because they did not believe they owed the landlord any money. Despite the evidence, the tenant’s counsel submitted that the failure to attend was likely related to the tenant’s disabilities and questioned the tenant’s ability to testify in that regard.
[6] The Member granted an adjournment to permit the tenant to obtain evidence about the nature of the tenant’s disabilities and how they may have interfered with the tenant’s ability to participate in the proceedings.
[7] The review hearing resumed on July 9, 2024. The tenant did not attend but their counsel did so. No evidence about the tenant’s disabilities was provided. The tenant’s counsel requested an adjournment, which was not granted because the purpose of the first adjournment had been to provide more evidence about disabilities, and there was none. The tenant had already testified so their absence was not the issue. Based on the evidence that was put forward, including the tenant’s evidence on the prior hearing date, the review was denied. The Member was not persuaded that there was a serious error or that the tenant was not reasonably able to participate in the original hearing.
[8] The tenant requested another review. The tenant submitted that their disability prevented them from attending both the original hearing and the resumption of the review hearing on July 9, 2024. The tenant submitted that their counsel had told them to come “any time” on July 9th for the hearing.
[9] On July 18 and 29, 2024, the tenant’s counsel faxed a written request for a doctor’s letter to the tenant’s GP.
[10] A second review was permitted even though it is not normally available. It was scheduled with an express order dated August 9, 2024, that required that any additional evidence, including medical evidence, be provided no later than seven days before the review hearing and that the failure to comply would mean that the party may not be permitted to rely on the evidence.
[11] The second review hearing took place on August 22, 2024, including the tenant and a different tenant’s counsel. On the morning of the hearing, rather than seven days in advance, the tenant disclosed four pages of additional documents. Those documents included a brief letter from the tenant’s GP dated July 23, 2024, well before the hearing, a brief printout of clinic records dated August 19, 2024, and a copy of a 2015 letter ‘to whom it may concern’ from their GP.
[12] The July 23, 2024, doctor’s letter said only as follows: “The above mentioned has been a patient since 2009. She was last seen on July 19, 2024 complaining of memory issues. Kindly assist her.” The 2015 letter said that the tenant was diagnosed with a mental disorder accompanied by psychosis and memory problems, that they had been on ODSP since 2010, and had been seen frequently by the GP and four times at CAMH in the period from 2010-2012, after which they began to use a house call service to avoid going out. The 2024 clinic document listed a medical history of “psychosis, dyslipidemia and endometriosis” and said nothing under the heading “Ongoing Concerns”.
[13] At the hearing, counsel to the tenant submitted that the prior counsel may have had issues getting instructions and getting in contact with the doctor or other medical representative. Counsel submitted that the above medical documents provided the needed evidence about mental health. The landlord’s counsel objected not only because the documents were late but also because they did not include evidence about the impact of the medical conditions on the tenant’s ability to participate in the LTB hearings earlier that year, because of the brief contents of the GP’s letter, and because the evidence was from a GP, not a psychiatrist. The Member considered the submissions about the medical documents and took the issue under reserve, ultimately deciding not to consider that evidence.
[14] As set out in the Second Review Decision, the Member considered the tenant’s evidence that they did not owe any rent and their evidence about getting medical records, finding that the tenant was instrumental in preventing their counsel from getting the records for the July 9, 2024 hearing despite understanding the reason that they were given an adjournment until that date. The Member found that the tenant’s claim that their lawyer said to come “any time” on July 9th for the hearing did not have the air of reality to it. The Member found that the tenant’s version of events was unlikely and that they had failed to exercise due diligence. The second review request was dismissed.
[15] The tenant then brought this appeal. The right of appeal is limited to questions of law, which include issues of procedural fairness. The standard of review is correctness.
[16] The tenant submits that the Board erred in law by refusing to admit the medical evidence put forward on the morning of the second review hearing and by fettering the Member’s discretion to admit that medical evidence.
[17] There is a preliminary issue on this appeal. The tenant has included evidence that was not before the Board in the appeal materials, without seeking or obtaining leave to introduce fresh evidence. The landlord objects.
[18] One type of document in the application record is permitted without leave. The four pages of medical documents that the tenant put forward on the day of the second review hearing on August 22, 2024, do not need leave. Those documents were put forward to the Board at the second review hearing and are the subject of the ruling that is challenged on this appeal. Those documents are properly part of the appeal record.
[19] The appeal record also includes a medical product monograph regarding Olanzapine, which was not put forward to the Board, and an affidavit of one of the appellant’s legal representatives, sworn in December 2024 after this appeal was commenced. To be accepted by this Court, these materials must meet the legal test for fresh evidence on appeal. A motion to admit fresh evidence should have been brought, but I have decided to overlook that omission.
[20] Fresh evidence may only be considered on an appeal if it falls within certain limited categories. The relevant starting point is the decision in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. The appellant has put forward Volochay v. College of Massage Therapist, 2019 ONSC 5718 (Div. Ct.), which summarizes the Palmer test at para. 34. The tenant must show the following:
(i) that the evidence could not have been adduced at trial by due diligence;
(ii) that the evidence is relevant in that it bears on a decisive or potentially decisive issue;
(iii) that the evidence must be credible in the sense that it is otherwise capable of belief; and,
(iv) that the evidence, if believed, taken with other evidence, could be expected to affect the result.
[21] The drug monograph does not meet the above test. It would certainly have been available at the time of the Board hearings. Further, it is a complex document that should be accompanied by an expert opinion about the impact of that drug on the tenant, if they were still taking it. The medical records only show that it was prescribed in 2014. The monograph is not the sort of thing that should simply be added to the record and interpreted by the Court. Coming before the Court in this way, it cannot be said to meet the second or forth parts of the above test.
[22] The most extensive proposed fresh evidence is the affidavit of the tenant’s prior counsel, who assisted the tenant with the first review hearing. The affiant recounts events beginning in May 2024 (prior to the first review hearing) and over the course of the period up to and including the conclusion of the review hearing on July 19, 2024. The affidavit includes commentary about what transpired at the hearing and also communications with the tenant before and right after the hearing. The affidavit mainly provides counsel’s observations of her client, based upon which counsel believed that her client was disabled and that was a factor in the course of events before the Board. This is proposed to supplement counsel’s submissions to the Board to that effect.
[23] On the question of whether this affidavit is admissible as fresh evidence, it does not meet the first element of the test. The evidence all pre-dates the second review hearing and there is no basis to conclude that there is a good explanation for the failure to put it forward then. On the rest of the test, it has not been shown to be potentially decisive. It therefore is not admissible as fresh evidence. However, even if accepted on this appeal, it would not change the result on this appeal, which is focused on the ruling about the medical evidence put forward at the second review hearing.
[24] Moving to the issues raised on this appeal, the appellant submits that it was a legal error and breach of procedural fairness not to accept the medical documents put forward on the morning of the second review hearing. The core of the appellant’s submission was that the documents were highly relevant and that should have been the prevailing consideration, not the timing. The appellant submits that the Member could have decided to admit the late documents and suggests that the Member’s discretion was wrongly curtailed.
[25] On timing, the Board had assisted the appellant by providing a second review, which is not contemplated by the LTB normal process. In doing so, the Board gave the appellant a second opportunity to provide medical evidence. Further, the Board made an order regarding terms. That order, dated August 9, 2024, gave clear notice that the parties were required to give each other any evidence no later than seven days before the next hearing. The order also gave notice that a consequence of non-compliance could be that the evidence could not be relied on. It did not say that any late evidence would not be admitted. Further, the GP’s letter is dated almost a month before the above hearing. The delay in putting it forward has not been adequately explained.
[26] The appellant submits that they were owed a high degree of procedural fairness, having regard for the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, and related decisions. The record on this appeal shows that they were given a high degree of procedural fairness. The appellant was given an adjournment in the first review hearing and an extra second review hearing even though they had counsel and had the burden to demonstrate that a review should be granted from the outset of the review process. They were provided with two more opportunities to put forward the evidence needed to support the requested review. The appellant was also given notice of what was required at the first review hearing and in the order regarding the second review. With respect to the ruling on the evidence itself, the appellant’s counsel had an opportunity to makes submissions on the issue at the second review hearing, as discussed further below.
[27] On the relevance of the medical documents, the doctor’s letter does not give a current diagnosis or say how the disabilities may have interfered with the tenant’s ability to participate in the Board proceedings. At the second review hearing, the respondent objected to the records not only because of the timing but because they expected more than a doctor’s letter from the GP saying that the appellant had memory issues.
[28] After hearing submissions from both sides about the documents, the Member took a recess. When the Member returned, he said that he had been given a lot of information on this preliminary issue and was going to give it further consideration before making a decision on the issue. It is clear from the transcript that the Member knew that either option was open to him – to admit or not admit the documents – and that he gave the issue serious consideration. The appellant has not shown that the Member erred in law with respect to the legislative regime that gave the Member the authority to admit the evidence or that the Member’s discretion was wrongly fettered.
[29] Ultimately, the Member refused to consider the new documents. That decision was open to the Member in the circumstances and the appellant has not shown an error of law or procedural unfairness.
[30] There is also an issue about remedy on this appeal. The appellant was lawfully evicted from the premises in May 2024 and the premises have since been re-rented to another tenant. As held by this Court in Tataw v. Minto Apartment L.P., 2023 ONSC 4238, at para. 4, where a landlord has re-rented the unit to a new arm’s-length tenant, who has been in possession for a period of time, “even if the appellant’s appeal were to succeed on the merits, the court would not oust the new tenant to restore the appellant to the unit.”
[31] An “exception may arise where the eviction or the re-renting of the unit has taken place in violation of a statutory stay or an order of the LTB or of this court, or where the new tenancy is a sham or to a person not at arm’s length from the owner”: Tataw, at para. 4. However, here, the eviction was lawful. Further, the evidence does not show a sham or non-arms length new tenant. In support of the remedy, the appellant submits that the landlord’s counsel’s statements in the record on this topic are vague or potentially conflicting.
[32] This proposed remedy is extraordinary and the record before me falls well short of what would be required to oust a new tenant.
[33] In the alternative, the appellant seeks an order to compel the landlord to “restore” them to a different unit, when one becomes available. However, as held in Tataw, at para. 6, there “is no statutory or common law authority for such an order, and it misconceives the structure of the Residential Tenancy Act.” As noted by the Board, this remedy would amount to asking the Court to set the terms of a new tenancy agreement, which is a matter of contract between private parties.
[34] Tataw is binding on me, but even in the absence of that decision I would not grant the requested remedies in this case.
[35] The course of this matter before the Board is unfortunate, however, that is not due to a legal error or procedural unfairness. The appeal record shows that the Board made extra efforts to permit the appellant to put forward evidence about her disabilities and did so fairly. The grounds for appeal, asserting an error in law or procedural fairness, have not been shown, and the desired remedy is not available.
[36] This appeal is dismissed. As agreed by the parties, there shall be no order as to costs.
Matheson J.
Date: March 18, 2025